THE ADVOCATE 375
VOL. 78 PART 3 MAY 2020
A second difference between Aboriginal title and other forms of common
law title is how these respective forms of property right are established. In
modern British Columbia, someone who wishes to show that they have title
to a house or some other form of real property will normally demonstrate that
they acquired that title from a predecessor who themselves held good title. A
First Nations collectivity that wishes to establish that it has Aboriginal title,
however, will instead normally have to demonstrate that at the date of the
assertion of Crown sovereignty,9 it engaged in practices upon which a court
can base a finding of Aboriginal title, and that a property right grounded in
those practices continued to exist in 1982 and up to the present. Establishing
Aboriginal title is therefore no small matter, as it requires proving on a balance
of probabilities that a particular set of facts existed two centuries ago
throughout what will often have been huge geographic regions and with
regard to peoples who did not make written records.10 So Herculean is that
task that to date only one group11 has accomplished it, and at a rumoured cost
of $18 million for the trial alone, to say nothing of the costs of the appeals.
Although we now know that Aboriginal title exists in British Columbia,
the only place where we know its location with certainty is in the approximately
1,700 km2 area where it was declared to exist in Tsilhqot’in Nation v.
British Columbia.12 Outside of the areas covered by treaties—Treaty 8 in
northeastern British Columbia, the Douglas Treaties on Vancouver Island,
the Nisga’a Treaty in the Nass River Valley, the Tsawwassen Treaty and the
Maa-nulth Final Agreement on the west coast of Vancouver Island—all of
the rest of British Columbia is subject to assertions of Aboriginal title.
A third, very significant difference between Aboriginal title and other
forms of common law title is that Aboriginal title is guaranteed by the constitution,
unlike any other form of property right.
CONSULTATION AND ACCOMMODATION
Since Aboriginal title is asserted to exist throughout all of the non-treaty
lands in British Columbia but only known to exist in the areas identified in
Tsilhqot’in, what should happen when some new resource development—
for example, logging, mining or a pipeline—is proposed? It might have been
thought that the potential existence of constitutionally protected property
rights would have been a basis on which Indigenous groups would have
been able to obtain injunctions to prevent such developments in their
asserted title areas. In practice, however, this generally proved not to be the
case.13 Given that, the Supreme Court of Canada established that in areas
where Aboriginal title has been asserted but not proven, the Crown must
consult with and accommodate Indigenous peoples.14 Where the Crown has